Hazel ParkMarch 15, 2013
Fight to overturn state’s same-sex marriage ban continues
Federal judge delays decision pending similar cases in U.S. Supreme Court
By Andy Kozlowski
C & G Staff Writer
HAZEL PARK — A federal judge postponed making a decision earlier this month regarding a challenge to Michigan’s same-sex marriage ban, opting to wait and see what comes of the U.S. Supreme Court’s ruling on similar issues this summer.
The plaintiffs in the Michigan case are April DeBoer and Jayne Rowse, of Hazel Park, a same-sex couple who have been in a committed relationship for more than 13 years and have been living together for seven years.
The couple have three special-needs children they adopted when the kids were just newborns — one surrendered by a homeless woman; one abandoned by a drug-addicted prostitute; and another born to a 19-year-old woman.
They saved their children from potentially tough lives. Now they’re fighting to share joint guardianship of them, so their children can have the same rights under both parents.
Michigan’s current adoption code says only married couples or single parents can adopt a child. Earlier this year, the code was amended to even allow one-half of a married couple to adopt. Yet unmarried couples, both heterosexual and homosexual, cannot adopt.
And for same-sex couples, this poses a problem, since they also cannot get married.
Michigan voters approved a same-sex marriage ban in 2004. Other arrangements that provide benefits similar to marriage, such as civil unions and domestic partnerships, are also not legally recognized.
As such, if something happened to Rowse, the children she adopted — 4-year-old Nolan and 3-year-old Jacob — would receive no benefits from DeBoer. Likewise, if something happened to DeBoer, Rowse would have no rights to 3-year-old Ryanne, the child DeBoer adopted.
Even though the three children share the last name “DeBoer-Rowse,” they could be torn apart as a family if someone were to step in and try to claim them. They would be separated from their siblings, their grandparents and their only remaining parent.
“Jayne and I are married in our minds,” DeBoer said. “We don’t have the legal paperwork to show for it, but not having a legal marriage doesn’t affect our relationship. What it does affect is our children’s relationship. It keeps us from being a complete family that others can’t come in and take apart.”
This is why, in January 2012, DeBoer and Rowse filed a federal lawsuit against Gov. Rick Snyder and Attorney General Bill Schuette in U.S. District Court, saying it’s unconstitutional for the state to keep unmarried couples from adopting, and asking the judge to block state judges from enforcing the law.
In recent months, DeBoer and Rowse have changed their case to address the same-sex marriage ban — the first time it’s been challenged since 2004. The shift in focus occurred when the state tried to have the case dismissed, only for U.S. District Court Judge Bernard Friedman, of the Eastern District of Michigan, to identify the same-sex marriage ban as the “underlying issue” in the motion hearing.
The plaintiffs argue the same-sex marriage ban is in violation of the Equal Protection clause of the 14th Amendment, which is often interpreted as an attempt to honor the concept of “all men are created equal.”
They contend that there is no rational basis for the state to discriminate in this manner, and that the law is not tailored narrowly enough to avoid clashing with the Equal Protection clause.
On March 7, Friedman revisited the case but decided not to make a decision just yet, opting to see how the U.S. Supreme Court will address similar cases regarding California’s Proposal 8 and the federal Defense of Marriage Act. Those decisions are expected in June and could impact the lower courts.
“We were hoping for a victory today, but conversely, I understand why the judge decided to wait,” said Dana Nessel, a Detroit-based attorney representing DeBoer and Rowse, alongside Ann Arbor-based attorney Carole Stanyar. “I’m disappointed our victory isn’t now … but I have every confidence we will prevail on this.”
Nessel noted that census data indicates a large percentage of same-sex couples in Michigan have children, “So many people are suffering as a result of this (ban),” she said.
She also pointed out that, in Massachusetts, where same-sex marriage has been legalized, the family unit did not deteriorate, as opponents feared. Instead, marriages increased and divorces decreased, heterosexual couples included.
“I see lots and lots and lots of families that are hurt by the ban (in Michigan), but I don’t see anyone who benefits from the ban,” Nessel said. “It’s an antiquated notion that there is only one kind of family, and that that kind is always best for children. That’s not our viewpoint, nor is it the viewpoint of any psychologist or sociologist. Children will be well-adjusted if they’re raised by loving parents, irrespective of their sexual orientation.”
In a state defendants’ reply brief issued in December, the attorney general’s office maintained that “Michigan’s laws defining marriage as being between a man and a woman are valid and beyond federal constitutional challenge,” saying that, when other states have decided to alter the definition to allow same-sex marriage, it was first approved by voters.
The statement also says that plaintiffs “fail(ed) to show that there is any fundamental right to a same-sex marriage,” and that they failed also to prove the same-sex marriage ban was “passed because of any alleged animosity toward individuals based on sexual orientation.”
They also indicate that the state defendants’ position is that the same-sex marriage ban “promotes a legitimate state interest in raising children in an ideal home environment with both a mother and a father.”
“The attorney general’s responsibility is to defend the state constitution, and he is defending the marriage amendment as approved by the voters,” said Joy Yearout, spokesperson for the attorney general, in an interview after the March 7 hearing. “What our attorney argued in court is if the plaintiffs wished to challenge the amendment, the appropriate venue would be through the state legislature or at the ballot box.”
The plaintiffs say they are just a normal family. Rowse is an emergency room nurse, and DeBoer is a neo-natal intensive care nurse. They own a house together.
“We go to work; our kids go to school; we raise our kids and play with our kids — there’s nothing different between our family and other families,” DeBoer said. “What people don’t seem to understand is we don’t have equal rights to each other’s children, and the biggest issue to that, beyond the insurance and social security and so on, is if something happened to one of us, our children can be removed from the only family they’ve ever known.
“We were never looking to challenge the ban on same-sex marriage; we were looking to challenge the second parent adoption issue,” DeBoer said. “We didn’t set out to be crusaders fighting for everyone’s rights.”